Free Proposed Findings of Uncontroverted Fact - District Court of Federal Claims - federal

Case 1:99-cv-00447-CFL

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS (Electronically Filed on April 11, 2007) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

BOSTON EDISON COMPANY, Plaintiff, v. THE UNITED STATES, Defendant.

No. 99-447C No. 03-2626C (Judge Lettow)

ENTERGY NUCLEAR GENERATION CO., Plaintiff, v. THE UNITED STATES, Defendant.

PLAINTIFF ENTERGY NUCLEAR GENERATION COMPANY'S PROPOSED FINDINGS OF UNCONTROVERTED FACT IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT Pursuant to RCFC 56(h)(2), Plaintiff Entergy Nuclear Generation Company ("ENGC"), respectfully submits its proposed findings of uncontroverted fact in support of its Motion for Partial Summary Judgment regarding a portion of Plaintiff Boston Edison Company's ("Boston Edison") claims relating to diminution in value of the Pilgrim Nuclear Power Station ("Pilgrim"):

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1.

On June 17, 1983, Boston Edison entered into a Standard Contract with

the United States pursuant to the Nuclear Waste Policy Act of 1982 ("NWPA"), Pl. App. 1-62. 1 The Standard Contract obligated the Department of Energy ("DOE") to dispose of spent nuclear fuel ("SNF") and high-level radioactive waste generated at Pilgrim. Pub. L. No. 97-425, § 302, 96 Stat. 2201, 22572261 (1983) (codified as amended at 42 U.S.C. § 10222); Boston Edison's Amended Complaint ("Am. Compl.") ¶ 3, Pl. App. 397-98. 2. Boston Edison decided to sell its Pilgrim facility and solicited bidders

through a competitive auction process. Am. Compl. ¶ 50, Pl. App. 414. During the bidding, Boston Edison provided ENGC with a confidential Offering Memorandum. Boston Edison Company Confidential Memorandum ("Offering Memorandum") dated June 1998, Pl. App. 63174. In response to the Offering Memorandum, ENGC submitted an Indicative Bid dated July 31, 1998, Pl. App. 175-97. At the end of the bidding process, three bidders submitted final, binding bids, and ENGC was selected as the winning bid. Am. Compl. ¶ 53, Pl. App. 415. 3. ENGC and Boston Edison entered into a Purchase and Sale Agreement for

the sale of the Pilgrim facility, dated November 18, 1998. See Purchase and Sale Agreement Between Entergy Nuclear Generation Company and Boston Edison Company ("Purchase and Sale Agreement"), Pl. App. 236-312. 4. The Purchase and Sale Agreement transferred Pilgrim's Standard Contract

to ENGC. Entergy Nuclear Generation Co. v. United States, 64 Fed. Cl. 336, 338 (2005). 5. On July 13, 1999, Boston Edison sold Pilgrim to ENGC. Boston Edison

Co. v. United States, 67 Fed. Cl. 63, 64 (2005) ("Boston Edison II"); Entergy Nuclear Generation Co. v. United States, 67 Fed. Cl. 63, 64 (2005); Am. Comp. ¶ 4, Pl. App. 398.
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"Pl. App." refers to the Appendix submitted herewith in support of ENGC's motion for partial summary judgment.
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6.

Boston Edison and Entergy construe the assignment of the Standard

Contract as retaining for Boston Edison any claims accruing as of the closing date, with Entergy acquiring claims accruing thereafter. Boston Edison Co. v. United States, 64 Fed. Cl. 167, 170 (2005) ("Boston Edison I"); Am. Compl. ¶ 55, Pl. App. 415. 7. The DOE breached, and continues to breach, the Standard Contract at

issue in this case by failing to dispose of the SNF at Pilgrim, as provided for by the Standard Contract. System Fuels, Inc. v. United States, 73 Fed. Cl. 206, 208 n.2 (2006); Boston Edison II, 67 Fed. Cl. at 64; Am. Compl. ¶ 4-5, Pl. App. 398. 8. The assignment by Boston Edison of Pilgrim's Standard Contract to

ENGC constitutes a valid, enforceable assignment. 42 U.S.C. § 10222(b)(3); Boston Edison II, 67 Fed. Cl. at 64 n.1.

Dated: April 11, 2007 Of Counsel: Jay E. Silberg Daniel S. Herzfeld Jack Y. Chu PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street N.W. Washington, D.C. 20037-1128 (202) 663-8000 (202) 663-8007 (fax)

Respectfully submitted,

s/ Alex D. Tomaszczuk by s/ Jack Y. Chu PILLSBURY WINTHROP SHAW PITTMAN LLP 1650 Tysons Boulevard McLean, Virginia 22102-4859 (703) 770-7940 (703) 770-7901 (fax) Counsel of Record for Plaintiff Entergy Nuclear Generation Co.

L. Jager Smith, Jr. WISE CARTER CHILD & CARAWAY, P.A. 1340 Echelon Parkway Jackson, MS 39213 (601) 368-5572 (601) 368-5816 (fax)

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